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Rosenberg v. United States Dep't of Immigration & Customs Enforcement

United States District Court, District of Columbia

July 22, 2013

LAWRENCE ROSENBERG, Plaintiff,
v.
UNITED STATES DEPARTMENT OF IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants

Page 33

For LAWRENCE ROSENBERG, Plaintiff: John Matthew Gore, LEAD ATTORNEY, JONES DAY, Washington, DC; Lawrence D. Rosenberg, JONES DAY, Washington, DC, Washington, DC.

For UNITED STATES DEPARTMENT OF IMMIGRATION AND CUSTOMS ENFORCEMENT, FEDERAL BUREAU OF INVESTIGATION, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEY, UNITED STATES MARSHALS SERVICE, Defendants: Sobia Haque, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

OPINION

Page 34

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc., meatpacking plant and the subsequent prosecution of Sholom Rubashkin.[1] Dissatisfied with the agencies' responses to his request, the Plaintiff filed suit against United States Immigration and Customs Enforcement (" ICE" ), the United States Marshals Service, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation. Presently before the Court is ICE's [31] Mot ion to Dismiss or, Alternatively, Motion for Summary Judgment, and the Plaintiff's [38] Motion for Summary Judgment. Upon consideration of the pleadings,[2] the relevant legal authorities, and the record as a whole, the Court finds the Plaintiff failed to exhaust his administrative remedies regarding the merits of his claims against ICE, and the equitable considerations cited bye the Plaintiff does not warrant excusing that failure in this case. Accordingly, ICE's motion for summary judgment is GRANTED and the Plaintiff's cross-motion is DENIED AS MOOT.

I. BACKGROUND

By letter dated September 28, 2011, the Plaintiff submitted a Freedom of Information Act (" FOIA" ) request to ICE seeking (among other things): (1) " any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 (" the raid" ) and the subsequent prosecution of Sholom Rubashkin" ; (2) " any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register's August 6, 2011 article, 'Immigrant Raid Halted in 2000 on Election Fear, Ex-Agent Says'" ; (3) " any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA" ; (4) " any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N.D. Iowa 2007)" ; and (5) any and all documents reflecting communications between " any government agency or official" and at least 101 identified individuals regarding Mr. Rubashkin or Agriprocessors. Pl.'s Ex. A (9/28/11 FOIA Request) at 2-7. The Plaintiff's request included 40 numbered paragraphs outlining his specific requests. Id.

ICE received the Plaintiff's request on October 4, 2011. Def.'s Stmt. ¶ 1.[3] ICE determined that the Plaintiff's September 2011 request was similar to a FOIA request submitted on behalf of Mr. Rubashkin by his prior counsel in fiscal year 2009, which had been the subject of litigation between Mr. Rubashkin and ICE. Def.'s Stmt. ¶ ¶ 2-3. In particular, ICE determined that the first 15 paragraphs sought information similar to that at issue in the

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2009 request, though the remaining 25 paragraphs were unrelated to the earlier request. Id. at ¶ ¶ 5-6; see also Pl.'s Ex. B (2/5/09 FOIA Request). ICE instructed three separate offices to conduct searches for records responsive to the remaining 25 paragraphs unrelated to the 2009 request. Id. at ¶ 7.

ICE provided its initial response to the Plaintiff's September 2011 request on January 3, 2012, purporting to enclose the documents released in response to the 2009 request. Def.'s Stmt. ¶ ¶ 9-13. The parties dispute whether the January 2012 production included all of the documents released in response to the 2009 request. Def.'s Stmt. ¶ 10; Pl.'s Resp. ¶ 10. ICE issued its final response to the Plaintiff's request on February 16, 2012. Law Decl., Ex. A (2/16/12 Ltr. to Pl.). ICE indicated that it had located 166 pages and three spreadsheets responsive to the Plaintiff's request. Id. at 4. ICE withheld portions of 155 pages and each of the three spreadsheets " pursuant to exemptions (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E) of the FOIA." Id.; see also id. at 4-5 (explaining the exemptions in detail). The agency also determined that information responsive to paragraphs 13, 14, 15, 33, and 34 of the Plaintiff's request, " if the records exist, would be under the purview of the Department of Justice, Executive Office of Unite[d] States Attorneys," and provided contact information for the Executive Office. Id. at 5. The letter informed the Plaintiff that if he wished to appeal ICE's withholding determination, he must do so within 60 days. Id.

The Plaintiff appealed ICE's final response to his request through a letter dated March 16, 2012. Law Decl., Ex. B (3/16/12 FOIA Appeal). The Plaintiff argued that " [t]he 2011 request fully encompassed and expanded upon the 2009 request," but " ICE's response to the 2011 request included far less information than the response to the 2009 request." Id. at 1. The Plaintiff also suggested ICE " excessively redacted documents that were produced," misapplied certain exemptions, and " provided insufficient explanations for withholding information." Id. at 2-3. The Plaintiff requested that ICE " [f]ully respond to the 2011 request," " [r]e-evaluate the use of exemptions," and " [w]here there is [sic] statutory basis for redaction, produce a Vaughn list explaining the withheld information and justifying the withholding." Id. at 4. The Plaintiff's appeal letter further indicated that " [i]f no commitment has been provided by March 22, 2012, Mr. Rubashkin will seek court enforcement of his request." Id.

ICE received the Plaintiff's appeal on March 19, 2012, and acknowledged the appeal in a letter dated March 22, 2012. Def.'s Stmt. ¶ ¶ 22-23; Law Decl., Ex. C (3/22/12 Ltr. to Pl.). The letter indicated the Department of Homeland Security had received the Plaintiff's appeal and assigned the appeal number OPLA12-453. Law Decl., Ex. C. The letter indicated that " [a] high number of FOIA/PA requests have been received by the Department," and the agency has " adopted the court-sanctioned practice of generally handling backlogged appeals on a first-in, first-out basis," although appeals of expedited treatment denials are handled on an expedited basis. Id. The letter informed the Plaintiff that " [w]hile we will make every effort to process your appeal on a timely basis, there may be some delay in resolving this matter." Id.

According to ICE, the Plaintiff called the ICE FOIA office on March 23, 2012, inquiring as to when he would receive a response to his appeal. Def.'s Stmt. ¶ 25. ICE informed the Plaintiff that it had just received the Plaintiff's appeal that week, and the Plaintiff purportedly responded by

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threatening to file suit over ICE's " slow" response, and hung up. Id. at ¶ 26.[4] The Plaintiff filed suit that same day, alleging " ICE informed [the Plaintiff] that it was not prepared to give any timetable for the resolution of Mr. Rosenberg's appeal." Compl., ECF No. [1], ¶ 26. Pursuant to 6 C.F.R. § 5.9(a)(3), ICE administratively closed the Plaintiff's appeal after he filed suit. Law Decl., Ex. D (4/13/12 Ltr. to Pl.); see 6 C.F.R. § 5.9(a)(3) (" An appeal ordinarily will not be acted on if the request becomes a matter of FOIA litigation." ).

ICE moves to dismiss the Plaintiff's Complaint or in the alternative for summary judgment on the grounds the Plaintiff failed to exhaust his administrative remedies. For his part, the Plaintiff moves for summary judgment, arguing that ICE failed to conduct an adequate search for potentially responsive documents and seeks an order compelling ICE to produce a Vaughn index for all redacted documents.

II. LEGAL STANDARD

ICE moves to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The administrative exhaustion requirement under the Freedom of Information Act is not jurisdictional, therefore Rule 12(b)(1) is inapplicable to the present motion. Ivey v. Paulson, 227 F. App'x 1 (D.C. Cir. 2007). Furthermore, Rule 12(d) provides that " [i]f, on a motion under Rule 12(b)(6) [] matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Here, both parties rely on evidence outside the pleadings to support their respective positions regarding the Defendant's motion to dismiss for failure to state a ...


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